Protective Orders in Charleston, WV

If you are a victim of domestic violence, getting a protective order (also referred to as a restraining order) is the most effective way to protect yourself as well as your children. In order to get a protective order, you need to file a petition with the local magistrate court.

Depending on your safety and convenience, you can choose to file the petition in:

• The county where you live.
• The county where your abuser lives.
• The county where you last lived together (if you are a married couple).
• The county where you were abused.

In the petition, you need to provide the following information:

• Your name and address.
• The abuser’s name and address.
• Names of your children.
• A brief description of the acts of violence or abuse that you were subjected to, when and where it happened, and the reason why you need a protective order.

Once you file your petition, the magistrate will call for an emergency hearing. At the hearing, the magistrate will ask you several questions to determine whether you or your children are in imminent danger. If so, the magistrate will grant you an emergency protective order. It’s also called an ex parte order, as it can be granted solely based on your petition – without the abuser having to testify.

The order will go into effect immediately and will remain in effect for approximately 10 days. It is meant to provide mandatory relief, which includes prohibiting the respondent from abusing, harassing, threatening, stalking, or intimidating you or your children. The abuser is also prohibited from possessing firearms as long as the order remains in effect.

Depending on the circumstances, you can also request the magistrate for permissive relief, which can include:

• Prohibiting the abuser from contacting you or your children.
• Prohibiting the abuser from entering your workplace, your place of business, and your children’s school.
• Granting you temporary possession of the home where you and the abuser lived together.
• Granting you temporary custody of your children and pets.

The magistrate who grants you the emergency protective order will also schedule a hearing for deciding whether a final order (which is commonly referred to as a Domestic Violence Protective Order) needs to be granted. You can find the date and time of the hearing listed on the first page of your emergency protective order.

What Happens at the Final Hearing?

The final hearing will be held at the family court, where the abuser can testify and call witnesses who can back up their side of the story. For your part, you need to provide evidence, including:

• Photographs of your injuries.
• Medical reports.
• Police reports.
• Text messages, emails, and voicemails that the abuser sent you.
• Torn clothes and items that were broken by the abuser.
• Weapons used by the abuser to injure you.

This evidence will help to prove that you were subjected to domestic violence or abuse. You can also ask eyewitnesses and experts to testify to establish the abuser’s culpability.

It’s critically important to have legal representation at the final hearing. Furthermore, a reputable West Virginia domestic violence lawyer can present all the relevant evidence, cross-examine the abuser and their witnesses, and make compelling arguments to prove that you were subjected to domestic violence and that you need the protections you have asked for.

After hearing the arguments made by both sides and based on the evidence presented, the court will make its decision. Depending on the circumstances, the judge might grant you a 90-day or 180-day protective order.

The judge might also grant you a one-year protective order if one or more of the following aggravating factors exist:

• If two or more protective orders have been issued against the abuser in the past five years (based on the petition filed by you, someone in your household, or anyone else).
• If the abuser has violated the provisions of a protective order in the past.
• If the abuser has been convicted of stalking or harassing someone (who had gotten a protective order against the abuser) in the past.
• If the abuser has been convicted of misdemeanor or felony domestic assault or battery one or more times in the past (while you were living together or while you were living in the same household).

Appealing the Family Court’s Decision

If you are not satisfied with the decision made by the family court, you can choose to file an appeal in the circuit court. You are required to appeal the decision within 10 days from the date on which the original order was issued.

How Does Domestic Violence Impact Child Custody in West Virginia?

Family courts in West Virginia take a wide range of factors into account (including charges of domestic violence against a parent) while making decisions related to child custody and visitation. Depending on the severity of domestic violence charges, the court might decide to limit the abuser’s parental rights in the following ways.

Supervised Visitation

Under a supervised visitation arrangement, the parent in question can visit their children only under the supervision of a designated third party. The court might also order that the parent can spend time with their children only at a place authorized by the court.

If supervised visitation is one of the provisions of a protective order, the parent needs to comply with it only as long as the order is in effect. Once the order is lifted or terminated, they can visit their children without any supervision by anyone. On the other hand, if supervised visitation is included in the divorce decree or the child custody order, the parent needs to comply with it until the order is modified.

The court will decide to modify or end the supervised visitation arrangement only if the parent in question can demonstrate that they have been reformed, and that unsupervised visitation would be in the best interest of their children.

How to Obtain a Restraining Order in West Virginia?

Obtaining a restraining order, formally known as a Protective Order in West Virginia, is a crucial step for individuals seeking legal protection from abuse, harassment, stalking, or threats. West Virginia law provides avenues for both Domestic Violence Protective Orders (DVPOs) and Personal Safety Orders (PSOs), each designed for specific circumstances. Understanding the process is vital for ensuring your safety and that of your loved ones.

Types of Protective Orders in West Virginia

1. Domestic Violence Protective Order (DVPO): This is the most common type of protective order and is designed for victims of domestic violence. Domestic violence in West Virginia encompasses a range of abusive behaviors, including physical harm, attempted physical harm, threatening physical harm, sexual assault, sexual abuse, kidnapping, and holding or detaining someone against their will. The key criterion for a DVPO is a familial or intimate relationship between the petitioner (the person seeking protection) and the respondent (the alleged abuser). This includes spouses, ex-spouses, current or former intimate partners, household members, and certain relatives.
2. Personal Safety Order (PSO): A PSO is for individuals who are victims of stalking, a sexual offense, or repeated credible threats of bodily injury from someone with whom they do not have a domestic relationship. This order provides protection against individuals who are not family or household members.

Steps to Obtain a Protective Order in West Virginia:

The process generally involves several stages, starting with an emergency order and potentially leading to a final, longer-term order.

Step 1: Go to the Magistrate Court

The first step is to visit the Magistrate Court in the county where you live, where the abuser lives, where you last lived together (if applicable), or where the abuse occurred. Magistrate Courts are often accessible during business hours, and magistrates are generally on call 24/7 for emergency protective orders.

Step 2: Obtain and Fill Out the Petition

At the Magistrate Court, you will need to obtain and meticulously fill out a “Petition for an Emergency Protective Order.” This form requires you to provide critical information, including:

• Your name and address.
• The abuser’s name and address.
• Names of any minor children involved.
• A detailed, brief description of the abusive acts you’ve experienced, including dates, times, locations, and how they make you fear for your safety. Be as specific and factual as possible.
• The reason you are seeking a protective order.

Step 3: Emergency Hearing (Ex Parte Order)

Once you file your petition, a magistrate will typically hold an immediate emergency hearing. This hearing is often “ex parte,” meaning it can be granted based solely on your testimony without the abuser being present. The magistrate will ask you questions to determine if there is clear and convincing evidence of an “immediate and present danger of violence and abuse.” If the magistrate finds sufficient evidence, an Emergency Protective Order (EPO) will be issued.

• Immediate Effect: The EPO goes into effect immediately upon issuance.
• Provisions: An EPO typically prohibits the respondent from abusing, harassing, threatening, stalking, or intimidating you or your children. It also generally prohibits the abuser from possessing firearms or ammunition.
• Duration: An EPO is temporary, usually lasting for approximately 10 days, or until a scheduled hearing in Family Court.

Step 4: Service of Process

Law enforcement agencies in West Virginia are responsible for serving the protective order and petition on the respondent. This is a priority, and officers are generally required to make reasonable efforts to locate and serve the respondent within 72 hours. Upon service, the officer will inform the respondent that they are prohibited from possessing firearms and ammunition.

Step 5: The Family Court Hearing

The Emergency Protective Order will also schedule a hearing in Family Court, typically within 10 days of the EPO being issued. This is a more formal hearing where both you (the petitioner) and the respondent will have the opportunity to present their cases.

• Presenting Your Case: You should bring any available evidence to support your claims of abuse. This can include:
  • Photographs of injuries.
  • Medical reports.
  • Police reports.
  • Text messages, emails, or voicemails from the abuser.
  • Statements from witnesses.
  • Any items damaged by the abuser during abusive incidents.
• Respondent’s Opportunity to Respond: The respondent will have a chance to respond to your petition and present their own evidence or testimony.
• Judge’s Decision: After hearing both sides and reviewing the evidence, the Family Court Judge will decide whether to grant a final Domestic Violence Protective Order.

Step 6: Final Protective Order

If the judge determines that the claims of domestic violence have been proven by a preponderance of the evidence, a final DVPO will be granted. These orders offer more long-term protection and can last for 90 days, 180 days, or even one year, depending on the severity of the abuse and any aggravating factors (such as prior violations of protective orders or convictions for stalking/harassment).

A final protective order can include various provisions to ensure your safety, such as:

• Prohibiting the abuser from contacting you or your children.
• Ordering the abuser to stay away from your residence, workplace, and your children’s school or daycare.
• Granting you temporary possession of the shared home and temporary custody of children and pets.
• Ordering the abuser to surrender firearms.
• Providing for temporary financial support or property division.

Important Considerations:

• No Cost: There is generally no cost to file for a protective order in West Virginia.
• Legal Representation: While you are not required to have a lawyer, it is highly recommended. An attorney can help you navigate the legal process, gather evidence, and present your case effectively. Legal Aid of West Virginia and other domestic violence organizations can provide assistance.
• Violation of Order: A violation of a protective order is a criminal offense in West Virginia, punishable by confinement in jail and fines. If an order is violated, contact law enforcement immediately.
• Out-of-State Orders: Protective orders issued in West Virginia are typically enforceable in other states under federal law, and vice versa.

By understanding these steps and resources, individuals in West Virginia experiencing abuse can take action to secure their safety and well-being through the legal system.